Lawsuit withdrawn for top court appeal

Kauai opponents pull the case while filing a notice to go higher

LIHUE » As part of an agreement, lawyers for environmental group Thousand Friends of Kauai had the remainder of its case dismissed in court yesterday morning and promptly filed a notice of appeal.

The nonprofit group will ask the Hawaii Supreme Court to overturn Circuit Judge Randal Valenciano's ruling last Friday that barred the group from arguing the state violated the Hawaii Environmental Protection Act when it allowed the Superferry to sail to Kauai without doing an environmental assessment first. The attorneys said they will file a motion next week for an expedited hearing.

Valenciano ruled that Thousand Friends could not argue that the environmental law was violated because it did not challenge the Department of Transportation's decision to exempt the harbor improvements at Nawiliwili from an environmental assessment in time.

Under the law, anyone has the ability to challenge a Transportation Department decision to exempt a project from an environmental assessment, but they must do so within 120 days. The decision was announced in 2005, and Thousand Friends did not file its suit until 2007.

Thousand Friends' lawyers Daniel Hempey and Gregory Meyers have argued that the decision for Nawiliwili was invalidated when the Supreme Court overturned the department's decision to exempt Kahului Harbor from the same improvements.

The agreement to dismiss was a legal strategy aimed at protecting the limited resources of the nonprofit, Hempey said. A prolonged hearing on the remaining two claims, scheduled to begin yesterday, would have cost a lot of money, and the case was bound to end up at the Supreme Court anyway, he said.

"They're selling T-shirts and muffins" to pay for the lawsuit, Hempey added.

Solicitor General Dorothy Sellers of the state Department of the Attorney General said outside court yesterday that the only issue the Supreme Court will hear is whether Thousand Friends can bring the lawsuit so long after the Transportation Department's decision. Whether the state has even violated the law has not even been argued in court yet, she added.

"It is unpredictable" when the Supreme Court will hear the case, Sellers added.